SUBSTANTIVE DUE PROCESS, BLACK SWANS, AND INNOVATION

Abstract

Substantive due process is a vexing concept within constitutional law that has at times been mocked as an “oxymoron,” and recently re-anchored to American “tradition” and “history.” Yet the Court has refused to renounce the doctrine entirely, and has continued to apply it in a manner that considers evolutionary notions of “ordered liberty.” This Essay endorses “evolutionary” due process, though on new grounds. It recognizes that evolutionary due process reflects our actual constitutional practices – a point made by many commentators – but it also permits innovation as necessary to cope with so-called “Black Swan” events. All “living Constitution” arguments rest on the argument that the Constitution was meant to breathe, to accommodate and sometimes hasten cultural change. But these accounts tend to reflect optimism about cultural change, and about the Court’s ability to advance that progress. These tales ignore another, darker kind of change, which likewise requires that decision makers innovate: ominous, potentially cataclysmic outlier events that likewise occur throughout history. These “Black Swan” events tend to be repressed or exoticized in conventional constitutional histories, rather than appearing as part of the normal life cycle of our constitutional order. A fuller account of our history requires that we weave these outlier events into our historical narratives, and develop constitutional theories that recognize the fact of past ruptures and the inevitability of future ruptures. The Essay also explores the inherent limitations of the past as a guide to the future, and the special limitations of judges and lawyers to engaged in balanced historical analysis. Contemporary fascination with constitutional history as a means of determining constitutional meaning makes it especially critical that we are reminded of these inherent limitations, and that we consider more generally our forebearers’ willingness to “think anew.” This American constitutional spirit of renewal and innovation may be most apparent in times of crisis, but it never wholly disappears. Room for that spirit’s expression should be explicitly preserved in our due process principles going forward, lest we compromise future generations’ ability to cope candidly and effectively with the escalating forces of change.